First, let’s step back and set up the conundrum, as I see it, caused by the wording of the Criminal Code and the lack of clarification from the Supreme Court of Canada in the Levkovic case on the issue of life. Homicide under s. 222 of the Code is where a person, directly or indirectly, by any means, causes the death of a “human being.” However, it is only culpable homicide, as in murder, manslaughter or infanticide, which can form the basis of a homicide charge. Section 223 specifies when a child becomes a “human being” and therefore when a child can be the “victim” of a culpable homicide. Under that definition, a

child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Thus a child can be a victim of a culpable homicide at the very instance of the completion of the birthing process, when the child has fully exited the mother’s womb but with the caveat that the child must be “in a living state.” This phrase denotes life and suggests the child must be alive to be thus defined as a “human being.” However, the section continues and seems to broaden the definition by making the “living state” independent of breath, circulation, and the umbilicus connection to the mother. This too makes sense in the context of the first moments of birth, when a baby duly born transitions from embryonic fluid to air. It may take a newly born baby up to ten seconds to breathe and for the blood to circulate. In those crucial moments, according to the law, the child is a human being.

But how does this interpretation impact s. 243, an offence requiring the child to be dead? The section creates an offence where the child’s death is concealed even if the child died before or during birth. Clearly if the child dies before or during birth, the child would not be a “human being” in accordance with the definition of s.223, which finds a child is a human being where the child is completely out of the womb and in a living state. Even so, in the Supreme Court of Canada’s decision in Levkovic, Justice Fish, speaking on behalf of the Court, refers to this section to inform the meaning of s. 243 of the Criminal Code, the section creating an offence for concealing the dead body of a child. In order to determine if a newborn child was unlawfully killed, Justice Fish opined, homicide investigators would need to determine if the child would have likely to have been born alive as opposed to a stillbirth. Indeed, Justice Fish suggested

In order to facilitate the investigation of homicides, s. 243 must therefore apply to children that were either born alive or were likely to be born alive and thus capable of satisfying the Criminal Code definition of a human being in s. 223(1). (Emphasis added)

By applying the concepts of s.243 to the definitional section 223, the Supreme Court of Canada has turned life or being “in a living state” into the likelihood of life. To base a required element of an offence on “likelihood,” and to “read down” an interpretation section, which does not require such a reading to be applicable, seems to import the “vagueness,” which the SCC abhors. Instead of taking an opportunity to clarify the meaning of life in the context of death, the SCC choose to apply the catch-all likelihood test as found in the Mabior case and the Whatcott decision (see my previous blog for further discussion). What the Court fails to understand is that being alive is much different than being likely alive.

How does this connect to Schrodinger? Erwin Schrodinger’s 1944 What Is Life? book, based on a series of lectures, is part scientific, part philosophical treatise in which he applies quantum principles to biology in a search for an explanation of life. Many believe his book to be a precursor to the discovery of DNA. Life, in the Schrodinger world, is quantifiable and real as exemplified by genetic “code-script.” Although Schrodinger the quantum physicist would approve, Schrodinger the bio-theorist certainly would not.

There is no question these powers are extraordinary, permitting “investigative detention” on the basis of suspicion alone, not just for the brief period approved by our Supreme Court of Canada but also for an extended period of time, up to three days. This power is, on the surface, completely contrary to the long list of legal rights an individual has when suspected of a criminal offence as found in sections 7 to 14 of the Charter. In order to understand how this piece of legislation can survive a Charter challenge, we must look to the concept of “public interest.”

As early as 1985, in the earliest days of Charter jurisprudence, the Supreme Court of Canada, even while creating a Charter vision, was also envisioning a world without a Charter. In the Re B.C. Motor Vehicle Act case, Mr. Justice Lamer, speaking for the majority, tackled the still troubling issue of the need for criminal intention for a criminal offence as opposed to the no-fault concept found in absolute liability offences. In the Courts opinion, section 7 of the Charter through the “principles of fundamental justice” required mens rea or criminal intention for crimes. However, the same principles did not require full criminal intention for a public welfare or regulatory offence. For those quasi-criminal offences, where jail was a possible sanction, the SCC found the minimum intention required was a less fulsome type of intention akin to negligence. However, if a public welfare offence, where jail was a possible sanction, required no fault element as in an absolute liability offence, this violated s. 7 of the Charter and was deemed unconstitutional. No fault was only available for regulatory offences where jail was not a penalty. Justice Lamer, in coming to this conclusion, made two very interesting, and now very relevant, remarks on the “public interest” dimension found in Charter analysis and on the possibility of the inapplicability of the Charter in certain circumstances.

One of the arguments in support of absolute liability or no-fault offences urged that the “public interest” necessitated such offences in certain public welfare situations where the public good was at issue and the risk of public harm was engaged. Justice Lamer agreed but underlined the limited application the “public interest” aspect would have in Charter analysis. In his view, the public interest was not relevant to whether or not absolute liability violated the principles of fundamental justice under s.7 as a loss of liberty where no intention was required would always be contrary to s. 7. However, it was relevant to the s.1 analysis, section 1 permitting the reasonable limitation of a Charter right, which the government could establish was “demonstrably justified in a free and democratic society.” Thus, the government in establishing this justification could refer to and rely upon the “public interest” as a justification.

Another argument supports no-fault offences on the basis they are easier to prove and therefore more efficient or the “administrative expediency” argument. In the case of regulatory breaches, such efficiency would permit timely responses to scenarios of possible public harm. Justice Lamer soundly rejected the sacrifice of Charter values to administrative efficiency but with an important caveat: such a s.1 justification could only work “in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” 

It is this seemingly innocuous throwaway line (or obiter dicta), which I suggest will become the permission to suppress Charter rights in the name of terrorism.  In this way, an individual’s rights are not giving way to societal rights, in the sense that societal concerns trump individual protection. Instead, an individual rights actually become imbued with a “public interest” dimension. Thus, no longer can we speak of categories of rights created to protect the individual as the lines between rights become blurred. Indeed, we must now recognize that the individual is subsumed into the collective through the ever-present spectre of the “public interest.” Continuing on this line of reasoning, it is easy to see how even the jealously guarded right to counsel becomes expendable when “exceptional conditions,” like terrorism, rears its ugly head. Time may also show that this dimension will be carried further and become part of the right itself, not just a tool for justification by the state under s.1 but I will leave that analysis for a future posting!

In the first case, R v Cairney, the accused was acquitted of second-degree murder but convicted of the lesser and included offence of manslaughter on the basis of the codified provocation defence in the Code. This defence stands apart from the self-defence sections (now section) of the Code and provides for a very specific partial defence based on very specific circumstances. Typically, the class of defences known as justifications and excuses, when accepted, exonerate the accused completely. Provocation, as a justification, only partially relives the accused from culpability, providing for a reduced charge where the defence is made out. Provocation can only be used as a defence where the accused is being tried for murder and the only possible outcome, if the defence is accepted, is a diminishment of the murder charge to the lesser crime of manslaughter. Often the defence is used in conjunction with other defences, such as the more general defence of the person or even the excuses of duress or necessity. In those instances, although provocation as a defence is raised, an accused may be acquitted if the trier of fact accepts these other defences or simply has a reasonable doubt on the accused’s guilt based on the totality of the evidence. Indeed, often the judge in instructing the jury on a murder trial may instruct that even if a particular defence itself does not raise a reasonable doubt, criminal intention may be negated on the basis that all of the defences “rolled up” together may raise a reasonable doubt. Thus, the whole is greater than the parts. In the Cairney case, this instruction was given, but by the conviction for manslaughter, provocation seems to be the controlling factor.

On the Crown appeal, the Alberta Court of Appeal was unanimous in allowing the appeal and sending the matter back, as a murder charge, to trial. In the court’s opinion, the defence of provocation had “no air of reality” and was therefore not properly before the jury. The concept of “air of reality” creates a threshold test, which requires there to be some evidence, upon which a properly instructed jury, acting judicially, could render a verdict based on the defence. In other words, there must be an evidential basis for the defence before the jury should consider it.  The judge does not weigh the evidence, she merely ensures that such evidence is present. It is the function of the jury to weigh the evidence, in its totality, to come to a final decision on guilt or innocence.

This threshold test is not, however, without controversy, as it does require the accused to point to some evidence, which may result in requiring the accused to lead evidence. Although this is viewed as an “evidential” burden only, where the accused has only one defence and is unable to overcome the threshold test, the accused will have no defence at all. On the other hand, there is a public interest in ensuring that a person is tried on the evidence and not on a fanciful doubt.

In the Cairney case, the Alberta Court of Appeal found there was no “air of reality” to the defence based on the objective assessment required for determining whether the wrongful act or insult directed toward the accused, was “sufficient to deprive an ordinary person of the power of self-control” and on the subjective element of the defence, which required the accused to act “on the sudden.” As, in the Court of Appeal’s view, there was no evidence supporting these factors, the defence was not viable and should not have been left to the jury.

There are two concerns here: first, whether or not the Court of Appeal is substituting their opinion when the trial judge, who was present at the trial, decided otherwise and second, whether or not the jury made their decision based on something other than provocation, which would make the manslaughter finding appropriate. Certainly, Cairney could have been acquitted of murder – not having the subjective foresight of death – and yet convicted of manslaughter as he had the objective foreseeability of bodily harm, all without consideration of the provocation defence. The Appellant’s Factum filed on behalf of Cairney at the SCC can be viewed here.

The other Alberta appeal case on provocation, R v Pappas, suggests a more nuanced point. Although Pappas raised the provocation defence, he was convicted of murder at trial. At issue, besides the argument that the trial judge misdirected the jury on the defence, was the post conduct evidence of Pappas disposing of some of the victim’s personal belongings and attempting to leave the country, and whether this evidence was relevant on the issue of provocation. Crown counsel thought it was and so urged the jury to consider the post conduct evidence as negating the provocation defence. Counsel for the accused argued the evidence was irrelevant and should not have been left to the jury on their consideration of provocation.

The majority of the Court of Appeal found there was no error as the trial judge, when referring to the evidence, instructed the jury that the evidence “has no relevance to the issues you must decide,” which was effectively telling the jury the evidence had “no probative value.” However, the trial judge connected the irrelevancy to the issue of identification and did not specifically refer to the defence of provocation. Furthermore, evidence, which has no probative value but is highly prejudicial to the accused, as this evidence may be, should be deemed inadmissible at trial. If the evidence and the manner in which the Crown referred to it in his jury address effectively “took away” the provocation defence from the jury, then the accused should have a new trial. Certainly Justice Berger, in dissent, disagreed with the majority on this issue, finding that the jury instruction did not clearly and unequivocally direct the jury not to use the evidence. Both the respondent and the Appellant’s Factum for the SCC can be viewed here.

Another issue raised on Pappas is the whether or not the defence had an “air of reality” to it. Although the majority preferred not to second-guess the trial judge and proceeded on the basis the defence was viable, Justice Berger came out strongly in the dissent for the defence being left to the jury as it was “for the jury to measure the Appellant’s conduct at the critical moment.” This brings us back to the Cairney case and the role of the jury. These cases may provide some needed guidance on not only provocation as a defence but generally on the issue of threshold tests and on the level of deference appellate courts should have for the jury process.

Admittedly the old sections were cumbersome and confusing: section 34(1) offered a different defence from 34(2) and they both differed from sections 35 and 37. Then there were the myriad of defence of property sections from sections 38 to 42. Self-defence, as codified before the amendments, distinguished between a provoked and unprovoked attack. Section 34(1) could only be used as a defence by an accused who was subject to an unprovoked attack by the victim and who did not intend to cause death or grievous bodily harm in responding to that attack. In those very limited circumstances, the accused could use this self-defence section if the force used was no more than necessary to repel the attack.

Subsection 2 of that same section 34 offered a different and much broader defence. The section was silent as to who started the initial assault and therefore could be used by an accused who provoked an assault as well as an accused who did not provoke the assault. Additionally, the section applied where the accused intended to cause death or grievous bodily harm or did not intend it – as long as the victim died as a consequence of the action. The accused must have a reasonable apprehension of risk of death or grievous bodily harm from the victim to use the defence. The accused must believe on reasonable grounds that he or she could not otherwise be preserved from death or grievous bodily harm other than to use the force, which resulted in the victim’s death. The assessment was not totally objective, however, as the accused must have a subjective belief that force was necessary but must have a reasonable basis for the belief. Therefore, the defence a blending of objective and subjective elements.

Self-defence in section 35 was not used as often as section 34. The section restricts self-defence in circumstances where accused, without justification, assaults another or provokes an assault. The accused must not intend to cause death or grievous bodily harm before the need to defend self arose. However, to use the section, the accused must have a reasonable apprehension of death or grievous bodily harm and had a reasonable belief that force was necessary to preserve himself from death or grievous bodily harm. Finally, the accused must have attempted to retreat from the situation.

The final defence of the person section, under s. 37, is again a broader section of self-defence, which also extends the defence to the defence of another person under the accused’s protection. This section permits force only where the accused is preventing an assault or a further assault. Although the response of the accused must be reasonable there is no requirement that there be a reasonable apprehension of death or harm or a reasonable belief force was necessary to prevent death or harm.  The only requirement is the need for proportionality and therefore the force used must be no more than is necessary to repel the assault.

There are many difficulties with these sections, including the sheer difficulty in actually reading these sections and making sense of them.

Of course, these old sections come to us through the English common law, hence the requirement to retreat in where the accused is the aggressor. The sections thus deals with the seemingly “innocent” accused differently than the “aggressor” accused. The self-defence section 35, for the aggressor accused, is much more restrictive than s.34(1), for the innocent accused unjustly provoked. Contrasting the two sections, section 35 requires the accused, although the aggressor, not to intend death or grievous bodily harm but to have a reasonable belief that he would be subject to death or grievous bodily harm unless he acted. The force used must be no more than necessary and there must be an attempt to retreat. Indeed, a very difficult section to use considering the prerequisites. However, section 34(2), as broadly interpreted by the courts, filled that gap to include virtually any situation. The interpretation was so expansive, it seemed a wonder why section 35 was required at all. However, even with s. 34(2) expanding who could use self-defence, the objective/subjective assessment ensured that only those accused who fulfilled the objective/subjective requirements could use the defence successfully.

Two major difficulties are identified with this approach: firstly, to assess an accused’s actions at a time of split-second decision-making seemed mechanical and unrealistic. For an accused faced with an aggressive victim or for an accused in a highly emotional circumstance, the requirement that the accused use no more force than necessary was difficult to determine. Thus, the law stepped back from the emotions and required an objective assessment as well. This perhaps made it easier for the trier of fact, who was not faced with these circumstances and who could not possibly appreciate the life and death decision-making arising at that instance. But, it also made it much more difficult for an accused, who made a decision at the time in a heightened situation, to be then thinking of what application force, in response to that situation, is no more than necessary.

Secondly, the self-defence laws were so limiting that it failed to allow for exceptional circumstances, such as what arose in the Lavallee case, where a battered woman killed her husband. This case, in light of the recent SCC Ryan case (upon which I wrote a previous post here) also raises issue with other defences such as duress and defences – known as excuses – as opposed to self-defence, which are considered justifications. I will not delve into the these cases, other than to say a deeper analysis of them is required in light of this new legislation.

For further explanation, justifications such as self-defence, recognize that the elements of the crime have been made out – that both actus reus and mens rea are present – but the accused actions are justified as the accused faced external pressures (in the case of self-defence from another person) which caused the accused to act contrary to the law. As the major theme of our criminal law is choice and the ability of an actor to make the right choice, such pressures effectively take away choice, leaving the accused no other choice but to act as he or she did. In a justification defence, the accused challenges the wrongfulness of an action which would technically be a crime. In the circumstances the fundamental values of society and of the criminal law are promoted by disobeying the law rather than following it. Therefore, in self-defence there is a crime but the actions of the accused are not “wrong” and therefore the accused should not be held responsible for the crime and should therefore not be punished by the criminal justice system. Of course the real question is: how far does society want to go in justifying these criminal acts? Are our self-defence laws truly a reflection of our society’s fundamental values if they do not offer a defence for a battered spouse or a psychologically bullied child?

Do these changes then rectify the two problems as identified above? On the issue of creating an artificial scenario upon which the accused is to be assessed, the new section does little to alleviate this by imposing very clearly an objective assessment of the circumstances and leaving little room for individualization. Although the new amendments do equalize the section in the sense that now “any person” can use the defence, the list of factors to be considered in assessing the reasonableness of the criminal act ensures that all of the limiting circumstances, which were clearly set out in the old sections, are now found, not as clearly, in a list of factors which must be considered by the trier of fact.

Additionally, the assessment, which was viewed under the old sections as a blending of subjective/objective considerations, now appears to be more decidedly objective. There is no longer a consideration of the accused’s subjective belief in the force used being necessary. Now, stepping back, this change should be welcome as it does move away from the idea that an accused must weigh to the niceties the level of force used at the time. However, it also takes away any assessment of the accused’s subjective belief that the force used at the time was necessary. Instead the subjective belief only goes to whether or not the accused believed, reasonably of course, that the “force is being used against them or another person or that a threat of force is being made against them or another person.” After that “concession” to human frailty, the assessment is all done through the eyes of the reasonable man in an almost regulatory offence manner reminiscent of the due diligence or all due care defence in which the defendant will be acquitted if he or she or it (corporation) acted reasonably in all of the circumstances and took all reasonable steps required to avoid the harm. The only factor missing is the burden of proof, which in a regulatory scheme is “balance of probabilities” as opposed to the higher standard of proof “beyond a reasonable doubt.” Even in the criminal law’s cherished burden of proof the concept of “reasonableness” is present!

As to whether the new section will support extraordinary circumstances of a battered spouse or abused child will remain to be seen. Again, the lack of individualization in the assessment is concerning and although one of the factors to consider in determining the reasonableness of the act involves a review of the nature of the relationship between the accused and victim, the fact this must be assessed through the reasonableness lens does not permit a full consideration of the complexities of an abusive relationship.

Only the use of this section in court with a real set of facts will enlighten us on the viability and justiciability of this new defence of the person section. However, at first blush, it appears this is yet another example of how our criminal law is becoming more objective in outlook and less like the traditional principles of individualization, which was the hallmark of the criminal law as a humane law.

Now, with the start of Magnotta’s preliminary inquiry, the case is back in the media spotlight as Magnotta’s defence attempts to exclude the media and public from hearing the preliminary inquiry evidence. Today, Quebec Court Judge Lori-Renée Weitzman denied the defence request.

But what was this request all about?

A preliminary inquiry, as I explained in a previous post, is a procedure to determine if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This vetting process is permitted for only those indictable offences, which the accused has elected to be tried before a superior court judge. The hearing is heard before a provincial court judge who hears the evidence and decides whether to commit the accused for trial on the charges or any other charges arising out of the evidence or to discharge the accused for the lack of evidence on an essential element of any of the charges. It should be noted that the “right” to a preliminary inquiry is not absolute. The accused can waive the preliminary inquiry and consent to committal on all or some of the charges. The Attorney General can also circumvent a preliminary inquiry by preferring a direct indictment under s.577 of the Criminal Code. In that case, no preliminary inquiry takes place and the matter proceeds directly to trial in superior court.

The powers of a judge sitting as a preliminary inquiry judge are many and varied and set out in s. 537 of the Criminal Code. As a matter of course, the preliminary inquiry judge will order a ban on publishing the evidence heard under s.539 of the Criminal Code. This is done to preserve the integrity of the trial process, particularly where the trial will be before a judge and jury. A publication ban will ensure that the public remains impartial and ensures that evidence, which might become inadmissible at trial, is not within the public domain. However, such a ban on publication does not include a ban on the public attending the inquiry to hear the evidence first hand. It merely bans publication or distribution of such evidence heard.

The Magnotta defence, however, wanted the judge to go that extra step by banning the public from attending the inquiry under s.537(1)(h), which gives the judge the power to “order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing.” There is also a general power to exclude the public under s. 486 of the Criminal Code on the basis that the judge “is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.”

Although the reasons for dismissing the application has yet to be released online, it is instructive to review two other equally disturbing infamous cases of Paul Bernardo and Robert Pickton, where somewhat similar requests were made, in an attempt to understand the dynamics of such an application. In Pickton, the defence made a motion for exclusion of the public on the basis the case was so media intensive and with thestate of modern-day publication technology,

” a simple ban on publication of the evidence would not serve the ends of justice and would not preserve the accused’s right to be tried before a fair and impartial tribunal. This was particularly so, submitted the defence, as the American media was not bound to the order and could, therefore, publish the evidence thereby tainting the jury pool once the matter came to trial. In dismissing the application, except for permitting the usual ban on publication, and leaving open the defence’s right to re-open the application, Judge Stone recognized “the conflicts which arise between our tradition of open access to the courts and the principles encompassed by the right of freedom of expression versus the rights provided to an accused person in order to ensure that he or she receives a fair trial.” Even in that context, Judge Stone recognized, as emphasized in the Supreme Court of Canada Dagenais case that such an order was “exceptional.” Ultimately, Judge Stone agreed with Justice Oppal of the British Columbia Supreme Court, wherein Justice Oppal stated in the Murrin case: We live in an era that is often marked by high degrees of pretrial publicity which often features revelations of prejudicial pretrial evidence. In fact, it can be safely said that sometimes media coverage can be described as frenzied. However, I do not think that the justice system is so fragile that appropriate corrective measures cannot be taken in certain cases so as to ensure that an accused's right to a fair trial is not jeopardized.

In the end, the Judge released a very specific ban on publication, specifically prohibiting the information to be placed on the Internet. As an aside, in the 1996 SCC Canadian Broadcasting Corp. v. New Brunswick (Attorney General) case, the SCC sets out specific factors in considering such a ban in light of the conflicting Charter rights of an accused's right to fair trial and the right to public access to our criminal justice system as well as freedom of the press under s.7 and s.2(b).

Conversely, in the Bernardo case, it was the Crown and the families of the victims, which requested an order prohibiting the public from hearing and watching the videotape recordings of the crime when presented as evidence in court.  The court permitted this limited ban out of public decency and respect for the victims. Ultimately, the tapes were destroyed.

Of course, although the application was dismissed for Magnotta, this will not be the end of the matter. As the case goes to trial, there will, no doubt, be a revisiting of this issue of publicity and publication of the case in the media. At that time, the issue will be whether or not an impartial jury can indeed be found in light of the intense media exposure of the case and ultimately whether even the worst allegations can produce a fair trial.

Much of the intractable disagreement between the two philosophers is really more about religion than it is about philosophy. Thomas Reid, was a deeply religious man and a curate for the first few years of his professional life. David Hume, a staunch critic of religious belief systems, was a religious skeptic. Reid, a proponent of “common sense” and the human ability to sense his or her surroundings, argued that human beings innately believe in the veracity of another person’s testimony. In other words we are genetically disposed or “hard wired” for this belief. This “principle of credulity” as he termed it was connected to our human nature, which is naturally disposed to community, and our desire to trust our senses or feelings in accepting another person’s testimony. Therefore, this divine intuition was an appropriate and logical reason to accept another’s testimony.

Hume, ever the skeptic, required independent evidence that a person’s testimony was likely to be correct. In Hume’s opinion, humans have an incentive to lie when doing so would benefit their own self-interest. Politicians may come to mind as the example. Further, Hume argued, humans are naturally disposed to telling, and enjoying, unsubstantiated stories for the sheer pleasure these stories give themselves and others. The popularity of gossip magazines and the longevity of The National Enquirer can attest to this point.   

Immanuel Kant, who was awakened from his “dogmatic slumbers” by Hume’s philosophical theories, also weighed in on the issue. Kant went a step further than Hume by praising “intellectual autonomy” or the ability to be guided, not by another’s testimony, but by an individual’s own understanding and beliefs.

In light of this, how does the law approach testimonial evidence? Does the criminal justice system side with Hume and Kant requiring independent evidence before testimonial evidence will be accepted or does it side with Reid and the God-given nature of people to speak truthfully?

The general rule, it seems, is for Reid – permitting testimony to stand on its own, without requiring corroboration, but in the heightened circumstances of an oath or promise. This binding over of the witness to tell the truth does have a hint of Reid as it invokes the support or, in some ways, corroboration from a higher deity in the case of an oath or a higher power in the case of a promise. However, it is questionable whether Reid himself would deem this precaution necessary.

The criminal justice system relies on testimonial information to support two distinct aspects of a crime. Firstly, testimony is needed as part of the investigation of a crime. Secondly, it is required for at the trial of a crime. Although both aspects view testimony differently, clearly Reid’s principle of credulity applies to both.

During an investigation, the police interview witnesses and possibly the accused to provide the evidence of a crime. Such evidence gathering may precede the officer’s RPG (reasonable and probably grounds) for arrest or it may be gathered after the arrest, when RPG is already present. Although there may be some consideration of the credibility or believability of the testimony given, typically the police will leave the assessment or weighing to the Courts.

Once in the courts, the testimony is received without corroboration or without requiring independent evidence of the testimony. Historically, corroboration was required for a child’s unsworn testimony and for accomplice evidence, but these requirements were abolished or relaxed (Vetrovec warning for accomplice evidence), leaving the trier of fact to determine credibility by assessing the whole of the evidence.

So it appears our laws have applied both Hume and Reid and that the “common sense” approach of Reid has prevailed.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

In a prior posting, Can Criminal Law Keep Up With The Digital World?, I discussed the mounting technological impasse between investigation of crime and privacy rights. As the government rushes toward the new technological era, it seems those using this technology as an aid to their criminal activities, seem to be further ahead. The Courts, too, have been slow to offer guidance on these issues, resulting in uncertain and obfuscated laws. With the new judgment from the Court of Appeal for Ontario, R v Fearon, the law appears to be as clear as mud.

Let’s start with the media’s representation of this case, which by the way, involves a police search of an arrested person’s cell phone revealing information and photographs pertinent to the alleged crime. This is best described through the headlines used such as: OK for police to search cell phone if no password, says court or Ontario judge rules police can search non pass code-protected cell phones or better yet, Cell phones: No password, no protection: Why the Ontario court is right, and bad guys should get passwords. This emphasis on password protection seems overly simplistic. Even the articles suggesting the case is all about privacy rights seem to miss the mark. However, the articles on warrantless searches do come closer but not quite close enough in my view.

What Fearon raises does involve password protection, privacy rights, and warrantless searches but the issue is the extension of the common law right of the police to search incident to arrest. The Fearon case is all about the common law, how the common law can apply to present law conditions, and how the present law can be extended by the past. Incidentally, much of our present law is, in fact, merely a modification of previous law through the use of precedent and analogy. For a further discussion of the use of precedent and metaphors in law, read my previous posting Blog As Graffiti? Using Analogy and Metaphor In Case Law.

Police authority and the power to act can be found in legislation, by agreement, and in common law. The primary source of investigative power is found in the Criminal Code but the supreme law of Canada, the Charter of Rights and Freedoms through sections 7 to 13, has circumscribed and greatly impacted those powers. Police can also act upon agreement or consent of an individual. Although this power must be clearly and unequivocally given, the “ask and you will receive” police power permits consensual searches without a warrant.

Finally, the police have common law powers to effect an investigation. Common law, is unwritten law created through custom and practice and comes to us through the English common law tradition. Much of the common law has in fact been translated into written rules and has therefore become statutory but much has not. Case in point is the police powers found in the common law.

Historically, the police power to search incident to arrest is a common law power. Also a common law power is the police authority to enter a private dwelling place when in “hot pursuit” of a suspect. Common law, although historical, is subject to change. Custom and practice change and thus the common law must evolve with these changes in order to be relevant and responsive to societal needs. Thus, the police common law power to search incident to arrest has evolved into the police power to not only search an accused incident to arrest but to search the offender’s vehicle as well. This search incident to arrest must be connected to the arrest and there must be an articulable reason for it such as a reasonable prospect that the officer will find evidence of the commission of the crime or for police officer safety.

Another common law power to search and seize is known as the “plain view” doctrine. This common law principle permits a warrantless search and seizure where police are lawfully at a location and the contraband is in plain view to the police. In this instance the police do not need reasonable and probable grounds to believe that the item would be present but the police cannot be previously aware of the evidence and must come across it “innocently” or inadvertently. This power does not permit a full search of the location. 

This brings us back to the Fearon case and his cell phone. The argument advanced on appeal did raise the issue of the police common law powers but only on the issue of the police power to search incident to arrest. Plain view was not considered as although the phone itself was found in plain view, it was not contraband. Although the information found on the phone was evidence of a criminal offence, it was not found inadvertently but was found as a result of a purposeful search of the contents of the phone. One wonders if the plain view doctrine might have been engaged if the home screen of the phone showed an incriminating picture or text. That, however, was not the case in Fearon.

The question posited on the issue of search incident to arrest was whether or not the search went beyond what is considered a search incident to arrest. The Fearon court referred to two previous Ontario cases: the 2009 Polius case from the Ontario Superior Court of Justice, which found only a “cursory” search was permissible where the search was incident to arrest and the Court of Appeal for Ontario Manley case from 2011, which permitted a search of a cell phone, incident to arrest.

In Manley, the cell phone search revealed a photograph of the gun used in the robberies for which the offender had been just arrested. The “cursory” search of the phone was considered valid as the officer had done so in order to establish ownership of the cell phone as the accused was known to have stolen cell phones in the past. The search was for no other purpose and the photograph was found before the officer established ownership of the phone. Finding the incriminating photograph, in other words, was like finding contraband in plain view. A warrant was later requested to do a complete search of the phone. It should be noted that the robberies were completely unrelated to stolen cell phones and therefore the suggestion that the search was connected to the crime is questionable. In any event, the Court in Fearon preferred to follow the Manley case, believing it similar in facts and actions to Fearon.

Leaving aside the efficacy of the Manley decision, the bottom-line of Fearon concludes that a search of a cell phone, as incident to arrest, where the officer is seeking evidence connected to the arrest, is lawful. The difficulty with Fearon comes with the “throw away” line in the Court’s conclusion as follows

This case is not significantly different from Manley.  I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest.  Apparently, the cell phone was turned “on” and it was not password protected or otherwise “locked” to users other than the appellant.  The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery.  The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence. (underlined for emphasis)

This comment on the cell phone being turned “on” and not locked or password protected to other users seems to have been commented on by the Court without explanation. If the search of the cell phone is permissible under the common law authority of a search incident to arrest as defined in the Supreme Court of Canada case of Caslake, then the fact the cell phone is in the off or on position makes no difference. The emphasis should be on the legitimate connection between the arrest and the incidental search. In Fearon, the search was wholly connected to the investigation of the crime committed by the accused. As explained by Chief Justice Lamer, as he then was, in Caslake,

The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual.  Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy.

How then would the fact a cell phone may be locked impact this legitimate interest? It should not, unless the Court found that a cell phone itself has such a high privacy interest to outweigh law enforcement interests. This argument would bring us back to the SCC Cole case and whether, like a personal computer, the information contained on a cell phone touches a person’s biographical core. For a further discussion of this, see my previous blog on the case. However, Fearon did not refer to the Cole case or the issues raised by it.

Interestingly, the Court of Appeal for Ontario in an earlier case from 2011, R v Jones, which incidentally had Justice MacPherson, who was a member of the Court in Fearon, as a panel member, decided on the issue of a plain view seizure of information relating to child pornography during a legal search of a computer for a fraud offence, acknowledged that

Whether the plain view doctrine should apply in circumstances involving a computer search has been a matter of much debate.  The debate has centred on the intrusive nature of computer searches and the somewhat awkward fit between traditional search and seizure concepts and computer technology.

This “awkward fit” appears to be continuing as seen by the Manley and Fearon cases and will continue until we have some clarity from our Supreme Court.

But after the excitement of the situation diffuses, what lingers on is the legal speculation with not only the type of charges laid but also the manner in which the charges will be proven in court. In a case such as Pistorius, this legal fascination is compounded by the exotic quality of the case as it raises legal issues outside of the usual North American purview. Instead of the media calling and quoting local law professors, the press must dig deeper to present an understandable context to the foreign charges.

The initial reports immediately delineated the charge: “premeditated murder.” Even without legal training, the concept of “premeditation” seems straightforward and easily visualized. However, in reality, the South African concept of murder is anything but simple. Murder, an intentional killing, is distinguished from “culpable homicide,” a negligence based killing. Premeditation would suggest, not only an intentional killing, but also one, which is planned and deliberate, similar to the first-degree requirements in Canadian law found in s. 231(2) of the Criminal Code.

But the concept of “murder” has shifting meanings in South African law as well. Originally, South African criminal law followed the common law precepts of providing for a reduced form of homicide, known as “culpable homicide,” resulting from a provoked killing. Such provocation, based in the common law, occurs when the killing is committed in the heat of passion, before passion has time to cool, and in circumstances where an ordinary person would lose control. This concept of a partial defence based on provocation was a concession to the availability of the death penalty, since removed in 1997, as the Dutch legal tradition treated emotional excuses as mitigating sentence only.

In Canada, consistent with our common law tradition, we too have a partial defence to murder based on the common law provocation defence as codified in s.232 of the Criminal Code. When provocation is accepted as a defence in Canada, the murder charge under s.229 of the Criminal Code is reduced to the lesser but included offence of manslaughter. Manslaughter is defined in s.234 of the Criminal Code as culpable homicide that is not murder or infanticide and therefore can be assumed to be an unintentional killing of a human being. The Canadian concept of “culpable homicide,” as found in s.222 of the Criminal Code, is not an in-between state of unintentional murder as in South Africa but is the general category for all culpable or blameworthy killings of a human being be it murder, manslaughter, or infanticide. Any killings not found to be murder, manslaughter or infanticide is non-culpable or not blameworthy and therefore the accused, although still responsible for causing the death of a person, is not guilty of a crime.

South Africa, however, ultimately rejected the common law view of provocation, which considered the presence of intention, for a more nuanced approach in which provocation, defined as the even broader categorization of emotional stress, was connected to an individual’s capacity to form the requisite intent. Thus, the presence of emotional stress was treated like the presence of intoxication or insanity. South African criminal law then further compartmentalized capacity by labeling insanity as pathological incapacity while emotional stress and intoxication raised issues of non-pathological incapacity. With this shift from intention to capacity, provocation or emotional stress was no longer viewed as a partial defence resulting in a finding of culpable homicide but as a full defence requiring an acquittal. This is consistent with legal principles, as an accused, not even capable of forming an intention to act, cannot be viewed as responsible and therefore cannot be properly within the domain of the criminal justice system. Although, the South African courts have resiled to a certain extent from this position, particularly where the incapacity is emotion-driven, it appears provocation, depending on the circumstances, may be a full defence to murder.

This broadening of capacity and the removal of a partial defence re-aligned the South African concepts of culpable homicide and murder, separating these two offences through the concepts of dolus and culpa. Dolus is the malicious intention required for murder, while culpable homicide requires no dolus but culpa or negligence. This is not the same concept as the criminal negligence required for Canadian manslaughter. In Canada, manslaughter is based on a broader assessment of an accused’s objective forseeability of bodily harm where death ensues and does not require the foresight of death, as long as the underlying act is itself objectively dangerous or based on criminal negligence. Conversely, in South Africa, if an accused could reasonably foresee death ensuing as a result of his or her actions, he or she is guilty of culpable homicide.

What does this mean for Oscar Pistorius? Reviewing the news reports, this means the prosecution is pursuing murder or an intentional killing charge as opposed to a culpable homicide charge. This is based also on some of the evidence, which suggests a baseball bat was used in the crime. Pistorius’s plea of not guilty on the basis of an accidental killing also leaves no room for consideration of culpable homicide. As the facts shift and change, and as the trial publically unfolds, so too will the law reveal further possibilities in this tragic case of celebrity misconduct.

Plato was the first philosopher to detail the requirements of propositional knowledge, which is known as the “traditional” analysis of knowledge. Propositional knowledge or how someone knows a proposition is true, according to Plato, is based on three criteria. First, the knowledge must be believed by the person proposing it, meaning that one can only know something if they believe it. Second, the knowledge must be true. Thus, even if we believe in a state of facts, if that belief state is not true, there is no knowledge. This criterion requires objective truth. Third and lastly, there must be a justification for believing the knowledge is true. In other words, we must be able to articulate, based on “sound reasoning and solid evidence,” why we believe the knowledge to be true. If all three criteria are present, then the knowledge is accepted as true knowledge as opposed to “random” knowledge, which is based on a “lucky guess.”

All of this sounds very familiar and it should sound familiar as indeed in the legal arena, this Theory of Knowledge is used. For example, in criminal procedure, before a police officer can arrest an accused he must have reasonable and probable grounds or RPG for the arrest. There is no “fixed” definition of rpg, primarily due to the Charter, which prefers a contextual approach to determining whether or not an officer has RPG in the circumstances of each case. However, there are descriptions of rpg in differing areas of the law, which seem to be consistent. For instance, RPG is similar to the traditional English concept of “reasonable and probable cause” required for prosecuting a malicious prosecution case. The term is defined in the 1938 English House of Lords case Herniman v. Smith where Lord Atkin described it as

… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

Clearly, the concept of RPG is Plato’s propositional knowledge, which is fulfilled when the person has a sincere belief in a true set of facts based on justifiable reasons.

However, not all philosophers have agreed with Plato’s Theory of Knowledge. Edmund Gettier did not agree that justified true belief was knowledge. To support his dissent, he created what is known as Gettier Counterexamples or Gettier Cases, which present situations where Plato’s Theory fails.

Two Gettier Counterexamples were given in the lecture I watched. One counterexample was called The Stopped Clock Case. In this case, every day you pass by a clock and check the time. One morning you pass by the clock, which shows the time as 7:00 a.m. As you have taken time from this clock countless of times before, you sincerely believe the time is correct and your objective belief is justified, as the clock has been correct every other time you have used the clock. Indeed, it is 7:00 a.m. However, the clock is not working and had stopped at 7:00 a.m. the previous morning. It is just luck that you happened to glance at the clock when it apparently showed the correct time. Although on the surface, Plato’s Theory was fulfilled, in actuality the sincere belief was not premised on truth.

These fallacies show that knowledge is not necessarily justifiable true belief. Yet, it is this very premise – that knowledge can be justified if it is based on a true belief – which lies at the heart of reasonable and probable grounds. It is possible, therefore, that what is accepted as RPG is merely a Gettier Case and should not form the basis of a criminal charge. Perhaps, it is time to rethink even the basic propositions of criminal law to ensure we have a relevant and viable system.

Not only, did this MOOC make me think, but it also left me wondering; does the law need fewer lawyers and more philosophers?